March 30, 2010

Calling the District of Columbia's alleged destruction of evidence in a long-running civil suit against the city "very troubling," a federal district judge in Washington today appointed a magistrate judge to find out what's happened to missing video, audio and paper files.

The suit in the U.S. District Court for the District of Columbia stems from the arrest of one group of student journalists and an observer in 2002 in Pershing Park in Northwest Washington at a protest against the International Monetary Fund and the World Bank. The city has already agreed to settle a related class action for about $8.25 million, which includes about $2.5 million in attorney fees and costs.

In the pending case, which is scheduled for trial in October, lawyers for the plaintiffs today squabbled with District government attorneys over whether the city still has video shot by police from rooftops and other locations at the time of the protest.

Judge Emmett Sullivan tapped Magistrate Judge John Facciola to examine the alleged destruction of evidence, including the missing video, in both the pending suit and the suit the city agreed to settle. Sullivan granted Facciola the authority to call upon experts for the investigation. The judge expects Facciola to make any recommendation he deems necessary to the court.

“The court’s never been reluctant to get to the bottom of what happened here,” Sullivan said from the bench. He also said, “We’re going to get to the bottom of this.”

On the other hand, Sullivan said he is reluctant at this point to refer the dispute to the Justice Department for a criminal investigation. But he said he is open to that possibility. “I’m not ruling that out at all,” he said.

Monique Pressley of the D.C. Attorney General’s Office said the city also wants to know what’s become of the missing video files. Pressley said the District is actively looking for those files. “To the extent that videotapes exist, we want them,” Pressley said in court. She rejected the notion the city intentionally destroyed the tapes.

The plaintiffs’ co-lead counsel, professor Jonathan Turley of George Washington University Law School, said the plaintiffs have asked for years for the city to produce any video. Turley, who represents the four plaintiffs along with Bryan Cave partner Daniel Schwartz, accused the city of destroying or altering a “great library” of videotaped evidence.

In the suit that the city has agreed to settle, Mara Verheyden-Hilliard and Carl Messineo of Washington's Partnership for Civil Justice represent the class. Messineo said after the hearing that he is pleased with Sullivan's planned appointment of Facciola.

The plaintiffs want to add a spoliation claim to the suit, a request that Sullivan has not ruled on. The city’s lawyers are opposed to allowing the plaintiffs to amend the complaint. Turley argued today that an amended complaint is necessary because an adverse ruling against the government could serve to deter future destruction of evidence.

Sullivan is giving a lawyers for both sides a chance to respond in writing to the appointment of a special master. The responses are due in the coming weeks.